It matters what you call things, and how you use words. Why? Because if enough people who should know better use the word “trademark” as a verb enough times, you’ll get stupid stories like this:

Although Microsoft Corp. registered the Web site for its new Windows Azure more than 14 years ago, it has not trademarked the name of its new cloud-based operating system, Windows Azure, Internet searches revealed today.

Do tell!

According to searches conducted by Computerworld, Microsoft has not applied for a trademark for either “Windows Azure” or “Azure Services Platform” with the U.S. Patent and Trademark Office. Microsoft used both names to describe its Software + Services technology.

Help us out here: Do LIKELIHOOD OF CONFUSION® readers need a refresher course on what Computerworld doesn’t get about trademarks? Or should we just dare someone from that august publication to start their own little enterprise — say, a “Software + Services technology” — and name it AZURE, WINDOWS AZURE or even WINDOWS ASSURE and see if they learn how trademark rights are acquired… the fun way?

UPDATE: Is this, to some extent, what the Intent to Use trademark procedure has wrought?

3 Responses to “Nomenclature matters”

It’s unfortunate how much a legal education has the potential to suck the entertainment value out of so many things. I used to be able to blissfully enjoy an episode of my favorite cop drama, not batting an eye when the characters discussed who might have “robbed” that house in a suburban neighborhood. Now, I can’t control my urge to yell “BURGLARIZED” at the screen. The reality is that the vast majority of the public couldn’t tell you the difference. Does it inflict any damage on the English language to use it imprecisely? I’m not sure that I can answer that question in the affirmative for every situation. Because language is able to grow and change over time, not every “misuse” should be condemned. Using the word “trademark” as a verb could very well be one such situation.

If “trademark” is used as shorthand to mean “to file an application for federal registration of a trademark,” I don’t really see too much of a problem. It is no different than using “google” to mean “to search the Internet for something.” The problem identified here is not that the word “trademark” has been used improperly as a verb, but that Computerworld’s reporter demonstrates, subsequent to that use, a misunderstanding of what it means to apply for federal registration of a trademark. The author of that article seems to think that Microsoft is prohibited from using AZURE in association with its goods or services without a federal registration. I don’t really see a connection between that fundamental misconception of the law and the “misuse” of “trademark” as a verb. They are two distinct errors, and educating this author about one error will not necessarily fix his understanding of the other.

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The question of whether consumers are likely to be confused is the signal inquiry that determines if a trademark infringement claim is valid. This blog is about trademark law, copyright law, free speech (mostly as it relates to the Internet) and legal issues related to blogging.

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